EDITORIAL: Affirmative action back in Supreme Court

Abigail Fisher, the Texan involved in the University of Texas affirmative action case, accompanied by her attorney Bert Rein, right, talks to reporters outside the Supreme Court in Washington on Oct. 10. The University of Texas at Austin President Bill Powers is at right.(AP Photo)

BACK in 1978, when Jimmy Carter was president and light-hitting New York Yankees shortstop Bucky Dent was entering the tortured history of the Boston Red Sox with a bloop home run, the U.S. Supreme Court took up the issue of affirmative action.

In the case of University of California Regents v. Bakke, the Supreme Court ruled race could be used as a preferential factor in university admissions.

But it was a split and complicated decision. In what should have been a warning to all involved, the court also ordered that Allan Bakke be admitted, in part because the university couldn't prove he hadn't been illegally excluded by a quota system.

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The court has been forced over the years to revisit and redefine its guidelines for what is and what is not permissible, preferential treatment.

In the most recent major case, decided in 2003, the Supreme Court again narrowly upheld the federal constitutionality of affirmative action programs. The court said universities could use race as a factor in admissions to achieve diversity, but could not make that factor dominant in any given decision.

Good luck threading that needle.

Unsurprisingly, then, the issue is back before the Supreme Court this term.

THE current case has been brought by Abigail Fisher, a 22-year-old, white Texan who contends she was discriminated against when the University of Texas did not offer her admission in 2008. She claims she was excluded by virtue of a racial diversity program that offered admission to 216 students in a class of more than 6,600.

This time, court observers believe, there is a good chance the court may reverse altogether the unsteadily supportive course of the last 34 years.

So what's changed?

The simplest answer is the court.

Sandra Day O'Connor, who wrote the 2003 opinion, retired and was replaced by Samuel Alito, who has signaled his skepticism, if not outright hostility, to affirmative action.

So much for the rule of precedent, to which all judicial nominees, including Alito, routinely swear fealty during confirmation hearings.

It's an open question whether American society also has changed sufficiently to no longer need - or tolerate - a program that never had widespread popular support.

Supporters of affirmative action say it not only rights past injustices aimed at classes of people, but also improves our institutions.

Colleges and universities long before affirmative action had elevated the squishy concept of "diversity" to a high place in the process of parsing applications for admission. Think athletics and extracurricular activities.

THE broad rubric of diversity has the virtue of justifying just about anything an admissions board wishes to do.

Grade point averages, class ranks and, yes, aptitude/achievement tests have been shown repeatedly to correlate strongly with academic success. That's no small thing when the issue at hand is admission to an academic institution.

The case for diversity as a deciding factor in admissions is different.

Diversity isn't a predictor of success for the individual.

Instead, diversity benefits institutions by exposing all of its community to a broader range of ideas, values and experiences.

But the question is not whether diversity is good for institutions, but what kind of diversity, at what price, and, in the case of Abigail Fisher, who pays for it?

Most Americans probably agree that diversity of experience is a good thing.

THE problem comes when entire classes of people are given a preference by simple virtue of membership in that class, despite their individual experiences. The rationale for affirmative action has been to reverse the historical oppression of classes of people, including blacks, women and other groups. The program has assumed that long-running institutional and societal prejudice becomes deeply engrained and, therefore, will not be easily reversed without such special consideration for those entire classes.

This may very well be true.

But it is indisputably a hard sell in a nation that has enshrined the idea that equal protection of the law for individuals is bedrock to our political order.